State v. Greene

727 A.2d 765, 52 Conn. App. 617, 1999 Conn. App. LEXIS 120
CourtConnecticut Appellate Court
DecidedApril 6, 1999
DocketAC 17329
StatusPublished
Cited by6 cases

This text of 727 A.2d 765 (State v. Greene) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Greene, 727 A.2d 765, 52 Conn. App. 617, 1999 Conn. App. LEXIS 120 (Colo. Ct. App. 1999).

Opinion

[618]*618 Opinion

LAVERY, J.

The defendant, Allison Greene, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A)1 and risk of injury to a child in violation of General Statutes § 53-21.2 On appeal, the defendant claims (1) that the trial court improperly (a) determined that defense counsel had “opened the door” to evidence of the defendant’s uncharged misconduct and (b) permitted the prosecutor to question a defense witness about her knowledge of the defendant’s uncharged misconduct, (2) that evidence of the defendant’s uncharged misconduct tainted the verdict thereby denying the defendant a fair trial and (3) that the defense counsel’s negligence deprived the defendant of her constitutional right to the effective assistance of counsel. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant, who was born in 1971, baby-sat for the victims, a boy, M, and a girl, S, between October 1, 1990, and July 30, 1992. At the time, M was between six and eight years of age and S was between seven and nine years of age. The defendant generally took care of the children on Friday evenings at their home, [619]*619but on occasion the children stayed with the defendant at her parents’ home.

While she cared for them, the defendant subjected both M and S to sexual contact on numerous occasions. The contact included having one of the children insert his or her finger into the defendant’s vagina and moving it about at the defendant’s direction. Sometimes the defendant touched M’s penis. On occasion, the defendant removed her clothing, had the children do the same and attempt sex together, and then the defendant rubbed M’s penis against her vagina. The defendant instructed the children not to tell anyone what they had done. In 1992, S asked the defendant to stop subjecting her to sexual contact and the defendant complied. The defendant did, however, continue to have sexual contact with M, including one incidence of placing M’s penis in her mouth. In July, 1995, M told his mother about the sexual activity. When questioned by her mother, S confirmed the events. The defendant was arrested and charged shortly thereafter. Trial was held in March, 1997, at which time M and S were twelve and thirteen, respectively. Additional facts will be addressed as necessary.

I

The defendant first claims that the trial court improperly ruled that defense counsel had “opened the door” to evidence of the defendant’s uncharged misconduct and permitted the prosecutor to question a defense witness regarding her knowledge of that misconduct. We disagree.

“ ‘The standard for review is clear. The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion [620]*620is manifest or where an injustice appears to have been done.’ . . . State v. Cooper, [227 Conn. 417, 426-27, 630 A.2d 1043 (1993)].” (Citations omitted; internal quotation marks omitted.) State v. Oliver, 48 Conn. App. 41, 51, 708 A.2d 594, cert. denied, 244 Conn. 930, 711 A.2d 729 (1998).

“Evidence of a defendant’s prior misconduct is not ordinarily admissible to prove his bad character or criminal tendencies. State v. Williams, 203 Conn. 159, 185, 523 A.2d 1284 (1987); see State v. Ortiz, 40 Conn. App. 374, 378, 671 A.2d 389, cert. denied, 236 Conn. 916, 673 A.2d 1144 (1996). Evidence of other misconduct, however, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity ... or an element of the crime. . . . State v. O’Neill, 200 Conn. 268, 273, 511 A.2d 321 (1986); State v. Sierra, 213 Conn. 422, 428-29, 568 A.2d 448 (1990); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982); State v. Busque, 31 Conn. App. 120, 128, 623 A.2d 532 (1993), appeal dismissed, 229 Conn. 839, 643 A.2d 1281 (1994). Such evidence, however, to be admissible must also be relevant and material. State v. Asherman, 193 Conn. 695, 728, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985); State v. Ibraimov, supra, 352; State v. Wiedl, 35 Conn. App. 262, 265, 644 A.2d 1313, cert. denied, 231 Conn. 914, 648 A.2d 160 (1994).

“The trial court has broad discretion not only to rule on the relevancy of evidence; State v. Jones, 205 Conn. 638, 666-67, 534 A.2d 1199 (1987); but also to determine the scope of cross-examination. State v. Cooper, [supra, 227 Conn. 431]; State v. Hernandez, [224 Conn. 196, 208, 618 A.2d 494 (1992)]; State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985). Uncharged misconduct [621]*621evidence must satisfy a two part test in order to be admitted as an exception. The evidence must be relevant and material to at least one of the claimed exceptions, and its probative value must outweigh its prejudicial effect. State v. Cooper, [supra, 427], State v. Wiedl, supra, 35 Conn. App. 265.” (Internal quotation marks omitted.) State v. Moore, 49 Conn. App. 13, 21-22, 713 A.2d 859 (1998).

“When relevant evidence of other crimes is offered, the trial court must still consider whether its prejudicial tendency outweighs its probative value before ruling upon its admissibility. . . . State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983). Because of the difficulties inherent in this balancing process, we will uphold the trial court’s ruling on the admission of uncharged misconduct evidence unless there is a manifest abuse of discretion or an injustice appears to have been done. Id.; State v. Harris, [43 Conn. App. 830, 837, 687 A.2d 544 (1996)].” (Internal quotation marks omitted.) State v. Vega, 48 Conn. App. 178, 191, 709 A.2d 28 (1998).

A

The following additional facts are relevant to our analysis of the defendant’s first evidentiary claim, i.e, that the trial court improperly determined that defense counsel opened the door to evidence of the defendant’s uncharged misconduct. Prior to trial, the state asked the trial court to determine whether it would permit the state to place in evidence facts of the defendant’s uncharged misconduct to show a course of conduct. Another incident of the defendant’s uncharged misconduct pertained to S and was barred by the statute of limitations.

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Cite This Page — Counsel Stack

Bluebook (online)
727 A.2d 765, 52 Conn. App. 617, 1999 Conn. App. LEXIS 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-greene-connappct-1999.